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62d Congress { 

2d Session \ 



SENATE 



Document 
No. 122 



THE CONSTITUTION AND ITS MAKERS 



AN ADDRESS 



DELIVERED BEFORE 



THE LITERARY AND HISTORICAL ASSOCIATION 
OF NORTH CAROLINA 



AT 



RALEIGH, N. C, NOVEMBER 28, 1911 



BY 



HENRY CABOT LODGE 



PRESENTED BY MR. OVERMAN 
December 5, 1911. — Ordered to be printed 



WASHINGTON 
1911 



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THE CONSTITUTION AND ITS MAKERS. 



Mr. Lodge said : 

Before this society and on such an occasion to speak on any subject 
not connected with the history of our common country would hardly 
be possible and would certainly not be fitting. I have, therefore, 
chosen a subject which touches the history of the United States at 
every- point. I shall try to set before you some of the results of a 
great work in which your State and mine alike took part a century 
and a quarter ago and which possesses an interest and an importance 
as deep and as living to-day as at the moment of its inception • I 
shall touch upon some present questions, but I shall speak without 
the remotest reference to politics or parties, for my subject tran- 
scends both. I shall speak as a student of our history with reverence 
for the past and with a profound faith in the future. In a word, I 
shall speak simply as an American who loves his country "now and 
forever, one and inseparable." 

A little less than twenty-five years ago great crowds thronged the 
streets of Philadelphia. Men and women were there from all parts 
of the United States; the city was resplendent with waving flags 
and brilliant with all the decorations which ingenuity could suggest, 
while the nights were made bright by illuminations which shone on 
every building. {Great processions passed along the streets, headed 
by troops from the thirteen original States, marching in unusual 
order, with DelajvarejajLthe. head, because that little State had been 
the first to accept the great instrument of government which now. 
having attained its hundredth year, was celebrated in the city of its 
birth. Behind the famous hall where independence was declared an 
immense crowd listened to commemorative speakers, and the Presi- 
dent of the United States, a Democrat, honored the occasion with 
his presence and his words. 

Two years later, in 1889, the same scenes were repeated in New 
York. Again the cannon thundered and again flags waved above 
the heads of the multitude gathered in the streets, through which 
marched a long procession, both military and civil, headed as before 
by the representatives of the original thirteen States. Again, at a 
great banquet, addresses were delivered and once more the President 
of the United States, this time a Republican, honored the occasion 
by his presence, and in the name of all the people of the country 
praised the great work of our ancestors. 

In Philadelphia we celebrated the one hundredth anniversary of the 
formation of the Constitution of the United States. In New York 
we commemorated the one hundredth anniversary of the inaugura- 
tion of the Government which that Constitution had brought into 
being. Through all the rejoicings of those days, in every spoken and 
in every written word, ran one unbroken strain of praise for the 
great instrument and of gratitude to the men who, in the exercise of 



4 THE CONSTITUTION AND ITS MAKERS. 

the highest wisdom, had framed it and brought it forth. All men 
recalled that it had made a nation from thirteen jarring States; 
that it had proved in its interpretation flexible to meet new conditions 
and strong to withstand injustice and wrong; that it had survived 
the shock of civil war; and that under it liberty had been pro- 
tected and order maintained. The paean of praise rose up from 
all parts of this broad land unmarred by a discordant note. Every- 
one agreed with Gladstone's famous declaration, that the Consti- 
tution of the United States was the greatest political instrument 
ever struck off on a single occasion by the minds of men. We 
seemed, indeed, by all we then said and did to justify those foreign 
critics who reproached us for our blind reverence for our Constitu- 
tion and our almost superstitious belief in its absolute wisdom and 
unexampled perfections. 

Those celebrations of the framing of the Constitution and of the 
inauguration of the Government have been almost forgotten. More 
than twenty years have come and gone since the cheers of the crowds 
which then filled the streets of New York and Philadelphia — since 
the reverberations of the cannon and the eloquent voices of the 
orators died away into silence. And with those years, not very many 
after all, a change seems to have come in the spirit which at that time 
pervaded the American people from the President down to the hum- 
blest citizen in the land. Instead of the universal chorus of praise and 
gratitude to the framers of the Constitution the air is now rent with 
harsh voices of criticism and attack, while the vast mass of the 
American people, still believing in their Constitution and their Gov- 
ernment, look on and listen, bewildered and confused, dumb thus 
far from mere surprise, and deafened by the discordant outcry so 
suddenly raised against that which they have always reverenced and 
held in honor. Many excellent persons believe apparently that 
beneficent results can be attained by certain proposed alterations 
in the Constitution, often, I venture to think, without examina- 
tion of the history and theory of government and without measuring 
the extent or weighing the meaning of the changes which are urged 
upon us. (But it is also true that everyone who is in distress, or in 
debt, or discontented, now assails the Constitution, merely because 
such is the present passion. Every reformer of other people's mis- 
deeds — all of that numerous class which is ever seeking to promote 
virtue at somebody else's expense — pause in their labors to point 
out the supposed shortcomings of our National Charter. Every 
raw demagogue, every noisy agitator, incapable of connected thought 
and seeking his own advancement by the easy method of appealing 
to envy, malice, and all uncharitableness — those unlovely qualities 
in human nature which so readily seek for gratification under the 
mask of high sounding and noble attributes — all such people now 
lift their hands to tear down or remake the Constitution. In House 
and Senate one can hear attacks upon it at any time and listen to 
men deriding its framers and their work. No longer are we criti- 
cised by outsiders for having a superstitious reverence for our Con- 
stitution./ Quite recently I read an article by an English member 
of Parliament (Mr. L. T. Hobhouse), a Liberal, I believe, with 
Socialist proclivities, who said that this reproach of an undue venera- 
tion for the Constitution ought no longer to be brought against us, 
because beneficent and progressive spirits were already beginning to 



THE CONSTITUTION AND ITS MAKERS. 5 

pull it to pieces and were seeking to modernize it in conformity with 

the clamor of the moment. | All this is quite new in our history. 

, We have as a people deeply reverenced our Constitution, We have 

; realized what it has accomplished and what protection it has given 

| to ordered freedom and individual liberty. Even the Abolitionists, 

when they denounced the Constitution for the shelter which it afforded 

to slavery, did not deny its success in other directions, and their 

hostility to the Constitution was one of the most deadly weapons used 

against them. 

The enmity to the Constitution and the attacks upon it which 
have developed in the last few years present a situation of the utmost 
gravity. If allowed to continue without answer, they may mislead 
public opinion and produce the most baneful results. The people 
of the United States may come to believe that all these attacks are, 
in a measure at least, true. And therefore if they are not true, 
their falsity ought to be shown. Beside the question of the main- 
tenance or destruction of the Constitution of the United States all 
other questions of law and policy sink into utter insignificance. In 
its presence party lines should disappear and all sectional differ- 
ences melt away like the early mists of dawn before the rising sun. 
^The Constitution is our fundamental law. Upon its provisions rests 
the entire fabric of our institutions. It is the oldest of written con- 
stitutions. It has served as a model for many nations, both in the 
Old World and in the New. It has disappointed the expectations 
of those who opposed it, convinced those who doubted, and won 
a success beyond the most glowing hopes of those who put faith in 
it. Such a work is not to be lightly cast down or set aside, or, which 
would be still worse, remade by crude thinkers and by men who 
live only to serve and flatter in their own interest the emotion of the 
moment... We should approach the great subject as our ancestors 
approached it — simply as Americans with a deep sense of its seri- 
ousness and with a clear determination to deal with it only. upon full 
knowledge and after the most mature and calm reflection. The time 
has come to do this, not only here and now, but everywhere through- 
out the country. 

Let us first consider who the men were who made the Constitution 
and under what conditions they worked. Then let us determine 
exactly what they meant to do — a most vital point, for much of the 
discussion to which we have been treated thus far has proceeded 
upon a complete misapprehension of the purpose and intent of the 
framers of the Constitution. Finally, let us bring their work and 
their purposes to the bar of judgment, so that we may decide whether 
they have failed, whether in their theory of government they were 
right or wrong then and now, or whether their work has stood the 
test of time, is broad based on eternal principles of justice, and, if rent 
or mangled or destroyed, would not in its ruin bring disaster and 
woes inestimable upon the people who shall wreck their great inher- 
itance and, like 

The base Indian, throw a pearl away, 
Richer than all his tribe. 

First, then, of the men who met in Philadelphia in May, 1787, with 
doubts and fears oppressing them, but with calm, high courage and 
with a noble aspiration to save their country from the miseries which 
threatened it, to lead it out from the wilderness of distractions in 



i 



6 THE CONSTITUTION AND ITS MAKERS. 

which it was wandering blind and helpless, into the light, so that the 
chaos, hateful alike to God and men, might be ended and order put in 
its place. It is the fashion just now to speak of the framers of the 
Constitution as worthy, able, and patriotic persons whom we are proud 
to have embalmed in our history, but toward whom no enlightened 
man would now think of turning seriously for either guidance or 
instruction, so thoroughly has everything been altered and so much 
has intelligence advanced. It is commonly said that they dealt 
wisely and well with the problems of their day, but that or course 
they knew nothing of those which confront us, and that it would be 
worse than folly to be in any degree governed by the opinions of 
men who lived under such wholly different conditions. It seems to 
me that this view leaves something to be desired and is not wholly 
correct or complete. I certainly do not think that all wisdom died 
with our fathers, but I am quite sure that it was not born yesterday. 
I fully realize that in saying even this I show myself to be what is 
called old fashioned, and I know that a study of history, which has 
been one of the pursuits of my life, tends to make a man give more 
weight to the teachings of the past than it is now thought they 
deserve. Yet, after all allowance is made, I can not but feel that 
there is something to be learned from the men who established the 
Government of the United States, and that their opinions, the result 
of much and deep reflection, are not without value, even to the wisest 
among us. 

On questions of this character, I think, their ideas and conclusions 
are not lightly to be put aside; for, after all, however much we may 
now gently patronize them as good old patriots long since laid in 
their honored graves, they were none the less very remarkable men, 
who would have been eminent in any period of history and might 
even, if alive now, attain to distinction. Let us glance over the list 
of delegates to the Constitutional Convention in Philadelphia in 
1787. I find, to begin with, that their average age was 43, which is 
not an extreme senectitude, and the a^es range from Franklin, who 
was 81, to John Francis Mercer, of Virginia, who was 28. Among 
the older men who were conspicuous in the convention were Frank- 
lin, with his more than 80 years; Washington, who was 55; Roger 
Sherman, who was 66 ; and Mason and Wythe, of Virginia, who were 
both 61. But when I looked to see who were the most active forces 
in that convention, I found that the New Jersey plan was brought 
forward by William Paterson, who was 42; that the Virginia plan 
was proposed by Edmund Randolph, who was 34; while Charles 
Pinckney, of South Carolina, whose plan played a large part in the 
making of the Constitution, was only 29. The greatest single argu- 
ment, perhaps, which was made in the convention was that of Ham- 
ilton, who was 30. The man who contributed more, possibly, than 
any other to the daily labors of the convention and who followed 
every detail was Madison, who was 36. The Connecticut compro- 
mise was very largely the work of Ellsworth, who was 42; and the 
committee on style, which made the final draft, was headed by 
Gouverneur Morris, who was 35. Let us note, then, at the outset 
that youth and energy, abounding hope, and the sympathy for the 
new times stretching forward into the great and uncharted future, 
as well as high ability, were conspicuous among the men who framea 
the Constitution of the United States. 



THE CONSTITUTION AND ITS MAKERS 7 

Their presiding officer was Washington, one of the great men of all 
time, who had led the country through seven years of war, and of 
whom it has been said by an English historian that "no nobler figure 
ever stood in the forefront of a nation's life." Next comes Franklin, 
the great man of science, the great diplomatist, the great statesman 
and politician, the great writer; one of the most brilliant intellects of 
the eighteenth century, who in his long life had known cities and men 
as few others have ever known them. There was Hamilton, one of 
the greatest constructive minds that modern statesmanship has to 
show, to whose writings German statesmen turned when they were 
forming their Empire forty years ago and about whom in these later 
days books are written in England, because Englishmen find in the 
principal author of the Federalist the great exponent of the doctrines 
of successful federation. There, too, was Madison, statesman and law- 
maker, wise, astute, careful, destined to be, under the Government 
which he was helping to make, Secretary of State and President. 
Roger Sherman was there, sagacious, able, experienced; one of the 
leaders of the Revolution and a signer of the Declaration of Inde- 
pendence, as he was of the Constitution. Great lawyers were present 
in Philadelphia in that memorable summer of 1787, such men as 
Ellsworth and Wilson and Mason and Wythe. It was, in a word, a 
very remarkable body which assembled to frame a constitution for 
the United States. Its members were men of the world, men of 
affairs, soldiers, lawyers, statesmen, diplomatists, versed in history, 
widely accomplished, deeply familiar with human nature. I think 
that without an undue or slavish reverence for the past or for the 
men of a former generation, we may fairly say that in patriotism and 
in intellect, in knowledge, experience, and calmness of judgment, these 
framers of the Constitution compare not unfavorably with those 
prophets and thinkers of to-day who decry the work of 1787, would 
seek to make it over with all modern improvements, and who with 
unconscious humor declare that they are engaged in the restoration 
of popular government. 

That phrase is in itself suggestive. That which has never existed 
can not be restored. If popular government is to be restored in the 
United States it must have prevailed under the Constitution as it is, 
and yet those, who just now are so devoured by anxiety for the rights of 
the people, propose to effect the restoration they demand by changing 
the very Constitution under which popular government is admitted 
by their own words to have existed. I will point out presently the 
origin of this confusion of thought. It is enough to say now that for 
more than a century no one questioned that the government of the 
Constitution was in the fullest sense a popular government. In 1863 
Lincoln, in one of the greatest speeches ever uttered by man, declared 
that he was engaged in trying to save government by the people. 
Nearly thirty years later, when we celebrated the one hundredth 
anniversary of the Constitution, the universal opinion was still the 
same. All men then agreed that the Government which had passed 
through the fires of civil war was a popular government. Indeed, 
this novel idea of the loss of popular government which it is proposed 
to restore by mangling the Constitution under which it has existed 
for more than a century is very new; in fact, hardly ten years old. 

This first conception of. our Constitution as an instrument of popu- 
lar government, so long held unquestioned, was derived from the 



8 THE CONSTITUTION AND ITS MAKERS. 

framers of the Constitution themselves. They knew perfectly well 
that they were founding a government which was to be popular in the 
broadest sense. The theory now sedulously propagated, that these 
great men did not know what they were about, or were pretending to 
do one thing while they really did another, is one of the most fantastic 
delusions with which agitators have ever attempted to mislead or 

Eerplex the public mind. The makers of the Constitution may have 
een right or they may have been wrong in the principles upon which 
they acted or in the work they accomplished, but they knew pre- 
cisely what they meant to do and why they did it. No man in history 
ever faced facts with a clearer gaze than George Washington, and when, 
after the adjournment of the convention he said, "We have raised a 
standard to which the good and wise can repair; the event is in the 
hands of God," he labored under no misapprehension as to the char- 
acter of the great instrument where his name led all the rest. 

It is the fashion to say that since then great changes have occurred 
and wholly new conditions have arisen of which the men of 1787 could 
by no possibility have had any knowledge or anticipation. This is 
quite true. They could not have foreseen the application of steam 
to transportation, or of electricity to communication, which have 
wrought greater changes in human environment than anything which 
has happened to man since those dim, prehistoric, unrecorded days 
when some one discovered the control of fire, invented the wheel, and 
devised the signs for language ; masterpieces of intelligence with 
which even the marvels of the last century can not stand comparison. 
The men of the Constitution could as little have foreseen what the 
effects of steam and electricity would be as they could have anticipated 
the social and economic effects of these great inventions or the rapid 
seizure of the resources of nature through the advances of science and 
the vast fortunes and combinations of capital which have thus been 
engendered. Could they, however, with prophetic gaze have beheld 
in a mirror of the future all these new forces at work, so powerful as 
to affect the very environment of human life, even then they would 
not, I think, have altered materially the Constitution which they 
were slowly and painfully perfecting. They would have kept on 
their way, because they would have seen plainly what is now too often 
overlooked and misunderstood, that all the perplexing and difficult 
problems born of these inventions and of the changes, both social 
and economic, which have followed were subjects to be dealt with by 
laws as the questions arose, and laws and policies were not their busi- 
ness. /They were not making laws to regulate or to affect either 
sociaror economic conditions. Their work was not only higher but 
far different. They were laying down certain great principles upon 
which a government was to be built and by which laws and policies 
were to be tested as gold is tested by a touchstone. 

Upon the work in which they were engaged social and economic 
changes or alterations in international relations and political condi- 
tions, no matter how profound or unforeseen — and none could have 
been more profound or more unforeseen than those which have 
actually taken place — had little bearing or effect. They were framing 
a government, and human nature was the one great and controlling 
element in their problem. Human nature, with its strength and its 
weakness, its passions and emotions so often dominating its reason, 
its selfish desires and its nobler aspirations, was the same then as now. 



THE CONSTITUTION AND ITS MAKERS. 9 

There is no factor so constant in human affairs as human nature 
itself and in its essential attributes it is the same to-day as it was 
among the builders of the Pyramids. As to the principles of govern- 
ment which the framers of the Constitution wished to adapt to that 
portion of human nature which had gained a foothold on the North 
American Continent there was little to be discovered. There is no 
greater fallacy than to suppose that new and fundamental principles 
of government are constantly to be invented and wrought out. Laws 
change and must change with the march of humanity across the cen- 
turies as it alteration finds in the conditions about it, but fundamental 
principles and theories of government are all extremely old. The very 
words in which we must express ourselves when we speak of forms of 
government are all ancient. Let me recall a few facts which every 
schoolboy knows and which anyone can obtain by indulging in. that 
too much neglected exercise of examining a dictionary. Anarchy, 
for example, is the Greek word "rule" or "command" with the alpha 
privative in the form of "an" prefixed, and means the state of a people 
without government. Monarchy is the rule of one; oligarchy is the 
rule of a few. We can not state what our own Government is with- 
out using the word "democracy," which is merely the Greek word 
Ar\iioKpaxEta and means popular government or the rule of the people. 
Aristocracy, ideally as Aristotle had it, is the rule of the best, but 
even in those days it meant in practice the rule of the best-born or 
nobles. Plutocracy is the rule of the rich; autocracy, self-derived 
power — the unlimited authority of a single person. Ochlocracy is 
the rule of the multitude, for which we have tried to substitute the 
hideous compound "mobocracy." As with the words, so with the 
things of which the words are the symbol ; the people who invented the 
one had already devised the other. The words all carry us back to 
Greece, and all these various forms of government were well known to 
the Greeks and had been analyzed and discussed by them with a bril- 
liancy, a keenness, and an intellectual power which have never been 
surpassed. If you will read The Republic and The Laws of Plato and 
supplement that study by an equally careful examination of what 
Aristotle has to say on government you will find that those great 
minds have not only influenced human thought from that time to 
this, but that there is little which they left unsaid. It is the fashion, 
for example, to speak of socialism as if it were something new, a radi- 
ant discovery of our own time which is to wipe away all tears. The 
truth is that it is very old, as old in essence as human nature, for it 
appeals to the strong desire in every man to get something for nothing 
and to have someone else bear his burdens and do his work for him. 
As a system it is amply discussed by Plato, who, in The Republic, 
urges measures which go to great extremes in this direction. In the 
fourth century of our era a faction called the Circumcellions were 
active as socialists and caused great trouble within the weakening 
Empire of Rome. The real difficulty historically with the theories of 
socialism is not that they are new, but that they are very, very old, 
and wherever they have been put in practical operation on a large 
scale they have resulted in disorder, retrogression, and in the arrest of 
civilization and progress. Broadly stated, there have been only two! 
marked additions to theories or principles of government since the 
days of the Greeks and the Romans. One is the representative prin- 
ciple developed by the people of England in the " Mother of Parlia- 
S. Doc. 122, 62-2 2 



10 THE CONSTITUTION AND ITS MAKERS. 

ments" and now spread all over the world, and the other is the 
system of federation on a large scale embracing under a central gov- 
ernment of defined powers a union of sovereign and self-governing 
States which the world owes in its bold and broad application to the 
men who met at Philadelphia to frame o.ur Constitution in 1787. 

With these exceptions the framers of the Constitution dealt with 
the theories and systems of government which have been considered, 
discussed, and experimented with for more than two thousand years 
and which are to day, a century later, the same as in 1787, un- 
changed and with no additions to their number. In order to reach 
the essence of what the makers of the Constitution tried and meant 
to do, which it is most important to know and reflect upon deeply 
before we seek to undo their work, let us begin by dismissing from 
our consideration aU that is unessential or misleading. Let us lay 
aside first the word republic, for a republic denotes a form and not a 
principle. A republic may be democratic like ours, or an autocracy 
like that of Augustus Caesar, or an oligarchy like Venice, or a changing 
tyranny like some of those visible in South America. The word has 
become as inaccurate, scientifically speaking, as the word monarchy 
which may be in reality a democracy as in England or Norway, con- 
stitutional as in Italy, or a pure despotism as in Russia. Let us 
adhere in this discussion to the scientifically exact word " democ- 
racy. " Next let us dismiss all that concerns the relations of the 
States to the National Government. Federation, as I have said, 
was the great contribution of the Philadelphia convention to the 
science of government. The framers of the Constitution, if they did 
not invent the principle, applied it on such a scale and in such a 
way that it was practically a discovery, a venture both bold and new, 
as masterly as it was profoundly planned. With the love of prece- 
dents characteristic of their race they labored to find authority and 
example in such remote and alien arrangements as the Achean 
League and the Amphictyonic Council, but the failure of these prec- 
edents as such was the best evidence of the novelty and magnitude 
of their own design. Their work in this respect has passed through 
the ordeal of a great war; it has been and is to day the subject of 
admiration and study on the part of foreign nations, and not even 
the most ardent reformer of this year of grace would think, in his efforts 
to restore popular government, of assailing the Union of Sovereign 
States. Therefore we may pass by this great theme which was the 
heaviest part of the task of our ancestors. 

In the same way we may dismiss, much as it troubled the men of 
1787, all that relates to the machinery of government, such as the 
electoral college, the tenure of office, the methods of electing Senators 
and Representatives, and the like. These matters are important; 
many active thinkers in public life seek to change them, not for the 
better, as I believe, but none the less these provisions concern only the 
mechanism of government ; they do not go to the root of the matter, 
they do not affect the fundamental principles on which the Govern- 
ment rests. 

By making these omissions we come now to the vital point, which 
is, What kind of a government did the makers of the Constitution 
intend to establish and how did they mean to have it work? They 
were, it must be remembered, preparing a scheme of government for 
a people peculiarly fitted to make any system of free institutions work 



THE CONSTITUTION AND ITS MAKERS. 11 

well. The people of the United Colonies were homogeneous. They 
came in the main from Great Britain and Ireland, with the addition of 
the Dutch in New York, of some Germans from the Palatinate and of a 
few French Huguenots, whose ability and character were as high as their 
numbers were relatively small. But an overwhelming majority of the 
American people in 1787 were of English and Scotch descent and they, 
as well as the others from other lands, were deeply imbued with all those 
principles of law which were the bulwarks of English liberty. In this 
new land men had governed themselves and there was at that moment 
no people on earth so fit for or so experienced in self-government as 
the people of the Thirteen Colonies. Their colonial governments 
were representative and in essence democratic. They became entirely 
so when the Revolution ended and the last English governor was with- 
drawn. In the four New England Colonies local government was in 
the hands of the town meetings, the purest democracies then or now 
extant, but it is best to remember, what the men of 1787 well knew, 
that these little democracies moved within fixed bounds determined 
by the laws of the States under w T hich they had their being. 

For such a people, of such a character, with such a past and sucht 
habits and traditions only one kind of government was possible, and 
that was a democracy. The makers of the Constitution called their 
new Government a Republic and they were quite correct in doing 
so, for it was of necessity republican in form. But they knew that 
what they were establishing was a democracy. One has but to 
read the debates to see how constantly present that fact was to their 
minds. Democracy was then a very new thing in the modern world. 
As a system it had not been heard of, except in the fevered struggles \ 
of the Italian City Republics, since the days of Rome and Greece, \ 
and although the convention knew perfectly well that they were 
estabhshing a democracy and that it was inevitable that they should 
do so, some of them regarded it with fear and all with a deep sense 
of responsibility and caution. The logical sequence as exhibited in 
history and as accepted by the best minds of the eighteenth century, 
struggling to give to men a larger freedom, was democracy — anarchy — 
despotism. The makers of the Constitution were determined that 
so far as in them lay the American Republic should never take the | 
second step, never revolve through the vicious circle which had cul- 
minated in empire in Rome, in the tyrants of the Grecian and the 
despots of the Italian Cities which in their turn had succumbed to 
the absolutism of foreign rulers. \ 

The vital question was how should this be done; how should 
they establish a democracy with a strong government — for after 
their experience of the confederation they regarded a weak govern- 
ment with horror — and at the same time so arrange the government 
that it should be safe as well as strong and free from the peril of 
lapsing into an autocracy on the one hand, or into disorder and 
anarchy on the other? They did not try to set any barrier in the 
way of the popular will, but they sought to put effective obstacles 
in the path to sudden action which was impelled by popular passion, 
or popular whim, or by the excitement of the moment. They were 
the children of the "Great Rebellion" and the "Blessed Revolu- 
tion ,; in the England of the seventeenth century, and they were 
steeped in the doctrine of limiting the power of the King. But here 
they were dealing with a sovereign who could not be limited, for 



12 THE CONSTITUTION AND ITS MAKEKS. 

while a king can be limited by transferring his power to the people, 
when the people are sovereign their powers can not be transferred 
to anybody. There is no one to transfer them to, and if they are 
taken away the democracy ceases to exist and another government, 
fundamentally different, takes its place. 

The makers of the Constitution not only knew that the will of 
the people must be supreme, but they meant to make it so. That 
which they also aimed to do was to make sure that it was the real 
will of the people which ruled and not their momentary impulse, 
their well-considered desire and determination and not the passion 
of the hour, the child, perhaps, of excitement and mistake inflamed 
by selfish appeals and terrorized by false alarms. The main object, 
therefore, was to make it certain that there should be abundant 
time for discussion and consideration, that the public mind should be 
thoroughly and well informed and that the movements of the ma- 
chinery of government should not be so rapid as to cut off due 
deliberation. With this end in view they established with the utmost 
care a representative system with two chambers and an executive 
of large powers, including the right to veto bills. They also made the 
amendment of the Constitution a process at once slow and difficult, 
for they intended that it should be both, and indeed that it should 
be impracticable without a strong, determined, and lasting public 
sentiment in favor of change. 

Finally they established the Federal judiciary, and in the Supreme 
Court of the United States they made an addition to the science of 
government second only in importance to their unequaled work in 
the development of the principle of federation. That great tribunal 
has become in the eyes of the world the most remarkable among the 
many remarkable solutions devised by the Convention of 1787 for 
the settlement of the gravest governmental problems. John Mar- 
shall, with the intellect of the jurist and the genius of the statesman, 
saw the possibilities contained in the words which called the court 
into being. By his interpretation and that of his associates and 
their successors the Constitution attained to flexibility and escaped 
the rigidity which then and now is held up as the danger and the 
defect of a written instrument. In their hands the Constitution 
has been expanded to meet new conditions and new problems as they 
have arisen. In their hands also the Constitution has been the pro- 
tection of the rights of States and the rights of men, and laws which 
violated its principles and its provisions have been set aside. 

By making the three branches of the Government, the executive, 
the legislative, and the judicial, entirely separate and yet coordinate 
and by establishing a representative system and creating a Supreme 
Court of extraordinary powers the framers of the Constitution 
believed that they had made democracy not only all powerful but at 
the same time safe and that they had secured it from gradual con- 
version into autocracy on the one hand and from destruction by too 
rapid motion and too quick response to the passions of the moment 
on the other. If ever men were justified by results they have been. 
The Constitution in its development and throughout our history has 
surpassed the hopes of its friends and utterly disappointed the pre- 
dictions and the criticisms of its foes. Under it the United States has 
grown into the mighty Republic we see to-day. New States have come 
into the-Union, vast territories have been acquired, population and 



THE CONSTITUTION AND ITS MAKERS. 13 

wealth have increased to a degree which has amazed the world, and 
life, liberty, and property have been guarded beneath the flag which 
is at once the symbol of the country and of the Constitution under 
which the Nation has risen to its high success. Such results would 
seem to be a potent argument in favor of the instrument of gov- 
ernment through which they have been achieved. But to argue 
from results seems just now out of fashion. Actual accomplish- 
ment it would appear is nothing. According to the new dispensa- 
tion our decision must be made on what is promised for the future, 
not on what has been done in the past. Under this novel doctrine, 
as I have observed it, we are to be guided only by envy and discon- 
tent and are to act exclusively on the general principle that what- 
ever is is wrong. 

What, then, is the plan by which popular government, which 
existed under the Constitution for more than a century and which 
has been mysteriously lost during the past few years, is to be restored 
to us ? It is proposed, to put it in a few words, to remove all the bar- 
riers which the makers of the instrument established in order to pre- 
vent rash, hasty, and passionate action and to secure deliberation, 
consideration, and due protection for the rights of minorities and of 
individuals. This is to be accomplished in two ways, by emasculat- 
ing the representative system through the compulsory initiative and 
referendum and by breaking down the courts through the recall. 
These are the changes by which it is intended to revive popular gov- 
ernment. Incidentally they strike at the very heart of the Consti- 
tution as the framers planned and made it, for they will convert the 
deliberate movement of the governmental machinery, by which its 
makers intended to secure to democracy both permanence and suc- 
cess, into an engine which starts at the touch of an electric button, 
which is as quick in response as a hair-trigger pistol and as rapid in 
operation as a self-cocking revolver. These new and precious ideas 
are of a ripe age; in fact they have passed many hundreds of years 
beyond the century fixed by Dr. Johnson for the establishment of a 
literary reputation at a point where it might be intelligently dis- 
cussed. Let us therefore consider and criticize them. 

The compulsory initiative and the compulsory referendum need 
not detain us long, for the effect of those devices is obvious enough. 
The entire virtue or the entire vice — each of us may use the word 
he prefers — of these schemes rests in the word " compulsory." The 
initiative without compulsion is complete in the right of petition 
secured by the first of the first ten amendments to the Constitution, 
which really constituted a bill of rights. The right of petition 
became the subject of bitter controversy at a later time and was 
vindicated once for all by John Quincy Adams's great battle in its 
behalf, more than three-quarters of a century ago. There are few 
instances where petitions representing a genuine popular demand 
have not met a response in action, whether in Congress or in the State 
legislatures; still fewer where respectful attention and consideration 
have not been accorded to them. But the responsibility for action 
and the form such action should take has rested with the repre- 
sentative body. When the initiative is made compulsory a radical 
change is effected. A minority, sometimes a small minority of the 
voters, always a small minority of the people, can compel the legis- 
lature to pass a law and submit it to the voters even when a very 



14 THE CONSTITUTION AND ITS MAKERS. 

large majority of the people neither ask for nor, so far as the evi- 
dence goes, desire it. In this way all responsibility is taken from 
the representative body and they become mere clerks for drafting 
and recording laws, poor puppets who move mechanically when 
some irresponsible outsiders twitch the strings. It is the substi- 
tution of government by factions and fractions for government by 
the people. The representative body as hitherto constituted repre- 
sented the whole people. Under the new plan it is to be merely the 
helpless instrument of a minority, perhaps a very small minority, of 
the voters. 

The voluntary referendum has always existed in this country. In 
the National Government, owing to our dual or Federal form, the refer- 
endum on constitutional amendments is necessarily made to the States 
and it has never been suggested for the laws of the United States, 
owing to both physical and constitutional difficulties. In the States 
the referendum has always been freely used, not only for constitu- 
tions and constitutional amendments but for laws, especially for 
city charters, local franchises, and the like. But if, on the demand of 
a minority of the voters, the referendum is made compulsory, all re- 
sponsibility vanishes from the representative body. The representa- 
tive no longer seeks to represent the whole people or even his own 
constituency, but simply votes to refer everything to the voters, and 
covers himself completely by pointing to the compulsory referendum. 
On the other hand, the voters are called upon to legislate. Of the 
mass of measures submitted they know and can know nothing. Ex- 
perience shows that in all referendums a large proportion of the voters 
decline to vote. Whether this is due to indifference or to lack of in- 
formation the result is the same. It proves that this system demands 
from the voters what the most intelligent voters in the world are unable 
to give. They are required to pass upon law x s, many of which they 
have neither time nor opportunity to understand, without deliberation 
and without any discussion except what they can gather from the 
campaign orator, who is, as a rule, interested in other matters, or from 
an occasional article in a newspaper. They can not alter or amend. 
They must vote categorically "yes" or "no." The majority either 
fails to vote, and the small and interested minority carries its measure, 
or the majority, in disgust, votes down all measures submitted, good 
and bad alike, because they do not understand them and will not vote 
without knowing what their votes mean. 

The great laws which, both in England and the United States, 
have been the landmarks of freedom and made ordered liberty pos- 
sible were not passed and never could have been perfected and passed 
in such a way as this. This new plan is spoken of by its advocates 
as progressive. As a matter of fact, it is the reverse of progressive, 
it is reactionary. Direct legislation by popular vote was familiar, 
painfully familiar, to Greece and Rome. In both it led through 
corruption, violence, and disorder to autocracy and despotism. The 
direct-vote system also proved itself utterly incapable of the govern- 
ment of an extended empire and of large populations. Where gov- 
ernment by direct vote miserably failed, representative government, 
after all deductions have been made, has brilliantly succeeded. The 
development of the principle and practice of representative govern- 
ment was, as I have already pointed out, the one great contribution 
of modern times to the science of government. It has shown itself 



THE CONSTITUTION AND ITS MAKERS. 15 

capable of preserving popular government and popular rights without 
the violence and corruption which resulted of old in anarchy and 
despotism and at the same it has proved its adaptability to the man- 
agement of large populations and the efficient government of great 
empires. Representative government was an enormous advance 
over government by the direct vote of the forum, the agora, or the 
market place, which had preceded it, and which had gone down in 
disaster. It is now proposed to abandon that great advance and to 
return to the ancient system with its dark record of disorder and 
failure. This is not progress. It is retreat and retrogression. It 
is the abandonment of a great advance and a return to that which is 
not only old and outworn, but which history and experience have 
alike discredited. 

Look now for a moment at representative government as we our- 
selves have known it. Let us not forget, in the first place, that the 
Congress of the United States under the Constitution has been in 
continuous existence for more than 120 years; that with the single 
exception of the "Mother of Parliaments" it is much the oldest 
representative body of a constitutional character now existing in the 
world. Let us also remember that the history of the American 
Congress is in large part the history of the United States, and that we 
are apt to be proud of that history as a whole and of the many great 
things we as a people have accomplished. Yet whatever praise his- 
tory accords to the Congress of the United States in the past the Con- 
gress of the moment and the members of that body in either branch 
receive but little commendation from their contemporaries. This is 
perhaps not unnatural, and it certainly has always been customary. 
Legislative bodies have rarely touched the popular imagination or 
appeared in a dramatic or picturesque attitude. The Conscript 
Fathers, facing in silence the oncoming barbarians of Gaul; Charles 
the First, attempting to arrest the five members; the Continental 
Congress adopting the Declaration of Independence; the famous Oath 
of the Tennis Court are almost the only instances which readily occur 
to one's mind of representative and legislative bodies upon whom for 
a brief instant has rested the halo of heroism and from which comes a 
strong appeal to the imagination. The men who fight by land and 
sea rouse immediate popular enthusiasm, but a body of men engaged 
in legislation does not and can not offer the fascination or the attrac- 
tion which are inseparable from the individual man who stands 
forth alone from the crowd in any great work of life, whether of war 
or peace. 

We may accept without complaint this tendency of human nature, 
but I think every dispassionate student of history, as well as every 
man who has had a share in the work of legislation, may rightfully 
deprecate the indiscriminate censure and the consistent belittling 
which pursue legislative bodies. This attitude of mind is not confined 
to the United States. The press of England treats its Parliament 
severely enough, although on the whole with more respect than is the 
case with the American press in regard to the American Congress. 
But running through English novels and essays we find as a rule the 
same sneer at the representatives of the people as we do here. Very 
generally, both in this country and abroad, those who write for the 
public seem to start with the proposition that to be a Member of 
Congress or a member of Parliament, or a member of the Chamber of 



16 THE CONSTITUTION AND ITS MAKERS. 

Deputies in France implies some necessary inferiority of mind or 
character. I do not desire to be rash or violent, but I think this 
theory deserves a moment's examination and is perhaps open to some 
doubt. As Mr. Reed once said, it is a fair inference that a man who 
can impress himself upon 200,000 people, or upon the whole popula- 
tion of a great State, sufficiently to induce them to send him to the 
House or Senate has something more than ordinary qualities and 
something more than ordinary force. Then, again, as Edmund Burke 
remarked, you can not draw an indictment against a whole people, 
nor, I may add, can you draw an indictment against an entire class. 
There are good men and bad men in business and in the professions, 
in the ministry, in medicine, in law, and among scholars. Virtue is 
not determined by occupation. There are, I repeat, good and bad 
men in every profession and calling, among high and low, rich and 
poor, and the honest men who mean to do right largely preponderate, 
for if they did not the whole social structure would come crashing to 
the ground. What is true of business and the professions is true of 
Congress. There are good and bad men in public life, and the pro- 
portion of good to bad, I believe, compares favorably with that of any 
other occupation. Public men live in the fierce light which beats 
upon them as upon the throne, a light never fiercer or more pitiless 
than now, and for this reason their shortcomings are made more glar- 
ing and their virtues by contrast more shadowed than in private life. 
This is as it should be, for the man who does wrong in private life is 
far less harmful than the public servant who is false to his trust. To 
inflict upon the public servant who is a wrongdoer the severest 
reprobation is necessary for the protection of the community, but 
for this very reason we should be extremely careful that no reproba- 
tion should be visited unjustly on any public man. It is an evil thing 
to betray the public trust, but it is an equally evil thing to pour whole- 
sale condemnation upon the head of every man in public life, good and 
bad alike. That which suffers most from an injustice like this in the 
long run is not the public servant who has been unfairly dealt with, for 
the individual passes quicklv, but the country itself. After all, the 
voters make the Representative. If he is not of the highest type, he 
appears to be that which the majority prefers. Wholesale criticism 
and abuse of the Representatives reflect more on the constituencies, if 
we stop to consider, than on those whom the constituencies select to 
represent them. Indiscriminate condemnation and equally indiscrimi- 
nate belittling of the men who make and execute our laws, whether in 
State or Nation, is not only a reflection upon the American people 
but is a blow to the United States and every State in it. They help 
the guilty to escape and injure the honest and the innocent. They 
destroy the people's confidence in their own Government and lower 
the country in trie eyes of foreign nations. 

The Congress of the United States embodies the representative 
principle. The principle of representation, I repeat, has been 
the great contribution of the English-speaking race to the science 
and practice of government. The Greeks and the Romans, let me 
say once more, had pure democracy and legislation by direct vote in 
theory, at least, and we have but to read Plato's Republic and The 
Laws to learn the defects of the system in use in Athens. Greece 
failed to establish an empire; she touched the highest peaks of civ- 
ilization, and finally went to pieces politically beneath the onset of 



THE CONSTITUTION AND ITS MAKERS. 17 

Rome. Rome established a great empire, but, after years of bloody- 
struggles between aristocracy and democracy, it ended in a simple 
despotism. The free cities of Italy oscillated between anarchy and 
tyranny, only to fall victims in the end to foreign masters. In 
Florence they had elections every three months and a complication 
of committees and councils to interpret the popular will. Yet the 
result was the Medicis and the Hapsburgs. 

It is also to be remembered that the representative principle has 
been coincident with political liberty. Whatever its shortcomings 
or defects, and, like all things human, it has its grave defects, it 
none the less remains true that the first care of every "strong man," 
every "savior of society," every "man on horseback," of every auto- 
crat, is either to paralyze or to destroy the representative principle. 
It may be that the representative principle is not the cause of polit- 
ical liberty, but there can be no question whatever that the two have 
always gone hand in hand and that the destruction of one has been 
the signal for the downfall of the other. The Congress of the United 
States and the legislatures of the several States embody the repre- 
sentative principle. By that principle your laws have been made 
and the republican form of government sustained for more than a 
century. Whatever its shortcomings, it has maintained the Govern- 
ment of the United States and upheld law and order throughout our 
borders. 

The framers of our Government separated the executive from the 
legislative branch. They deemed both essential to freedom. The 
constitution of my State declares that the government it establishes 
is to be a government of laws and not of men; a noble principle and 
one worthy of fresh remembrance. With such a history, and typi- 
fying as it does the great doctrines which were embodied in the 
Declaration of Independence, the Constitution of the United States, 
and the institutions of England, it may fairly be asked that if the 
representative principle must be criticized, as it should be, with 
severity when it errs, it should also be treated with that absolute 
justice which is not only right in the abstract but which is essential 
to the maintenance of law, order, and free government, to human 
progress and to the protection of the weak, even as the fathers 
designed that it should be. When we blame its failures let us not 
forget its services. They have broadened freedom down from prece- 
dent to precedent. They shine across those pages of history which 
tell the great story of the advance of liberty and of the ever-widening 
humanity which seeks to make the world better and happier for 
those who most need happiness and well-being. In beneficent results 
for the people at large no other form of government ever attempted 
can compare with it for a moment. 

The worst feature of the compulsory initiative and referendum lies 
therefore in the destruction of the principle of representation. Power 
without responsibility is a menace to freedom and good government. 
Responsibility without power is inconceivable, for no man in his 
senses would bear such a burden. But when responsibility and power 
are both taken away, whether from the executive or the represen- 
tatives, the result is simple inanition. No man fit r^y ability and 
character to be a representative would accept the office under such 
humiliating conditions. Those who accepted it would do so for the 



18 THE CONSTITUTION AND ITS MAKEKS. 

pecuniary reward which the office carried and would sink rapidly 
into mere machines of record, neither knowing nor caring what they 
did. With a representative body thus reduced to nothingness we 
are left with the people, armed only with their votes, and with an 
executive who has necessarily absorbed all the real powers of the 
State. This situation is an old story and has always ended in the 
same way. It presents one of those rare cases in which the teach- 
ing of history is uniform. When the representative principle has 
de carted and only its ghost remains to haunt the Capitol, liberty has 
not lingered long beside its grave. The rise of the representative 
principle and its spread to new lands to-day marks the rise of popular 
government everywhere. Wherever it has been betrayed or cast 
down the government has reverted to despotism. When representa- 
tive government has perished freedom has not long survived. 

Most serious, most fatal indeed are the dangers threatened by the 
insidious and revolutionary changes which it is proposed to make in 
our representative system, upon which the makers of the Constitu- 
tion relied as one of the great buttresses of the political fabric which 
was to insure to popular government, success and stability. Yet even 
.these changes are less ruinous to the body politic, to liberty and order 
than that which proposes to subject judges to the recall. No graver 
question has ever confronted the American people. 

The men who framed the Constitution were much nearer to the 
time when there was no such thing as an independent judiciary than 
we are now. The bad old days, when judges did the bidding of the 
King, were much more vivid to them than to us. What is a common- 
place to us was to them a comparative!}^ recent and a hardly won 
triumph. The fathers of some of those men — the grandfathers of 
all — could recall Jeffreys and the " Bloody Assize." They knew well 
that there could be no real freedom, no security for personal liberty, 
no justice, without independent judges. It was for this reason that 
they established the judiciary of the United States with a tenure 
which was to last during good behavior and made them irremovable 
except by impeachment. The Supreme Court then created and the 
judiciary which followed have, as I have already said, excited the 
admiration of the civilized world. The makers of the Constitution 
believed that there should be no power capable of deflecting a judge 
from the declaration of his honest belief, no threat of personal loss, 
no promise of future emolument, which could be held over him in 
order to sway his opinion. This conviction was ingrained and born 
with them, as natural to them as the air they breathed, as vital as 
their personal honor. How could it have been otherwise ? The inde- 
pendence of. the judiciary is one of the great landmarks in the long 
struggle which resulted m the political and personal freedom of the 
English-speaking people. The battle was fought out on English soil. 
If you will turn to the closing scenes of Henry IV, you will find there 
one of the noblest conceptions of the judicial office in the olden time 
ever expressed in literature. It was written in the da}^s of the last 
Tudor or of the first Stuart, in the time of the Star Chamber, of judges 
who decided at the pleasure of the King and when Francis Bacon, 
Lord Chancellor of England, took bribes or gifts. Yet lofty as is the 
conception, you will see that Shakespeare regarded the judge as 
embodying the person, the will, and the authority of the King. 



THE CONSTITUTION AND ITS MAKERS. 19 

We all know how the first two Stuarts used the courts to punish 
their enemies and to prevent the assertion of political rights, which 
are now such commonplaces that the fact that they were ever ques- 
tioned is foi gotten. The tyranny of the courts was one of the chief 
causes which led to the great rebellion, and out of that great 
rebellion, when the third Stuart had been restored, came the 
habeas corpus act, which has done more to protect per- 
sonal liberty than any act ever passed. But the second Charles 
and the second James had learned nothing as to the judges. 
They expected them to do their bidding when the King had any 
interest at stake, and under the last Stuart the courts reached a very 
low point and the legal history of the time is characterized by the 
evil name of Jeffreys. When the lawyers went to pay their homage 
to William of Orange, they were headed by Sergt. Maynard, then 
90 years of s go. "Mr. Se geant," said the prince, "you must have 
survived all tue lawyers of your standing." "Yes, sir," said the old 
man, "and, but for Your Highness, I should have survived the laws 
too." The condition of the courts was indeed one of the strongest of 
the many bitter g ievances which wroi ght the Revolution that placed 
William of Orarge on the English thione. In the famous bill of 
rights there is no provision in iegard to the courts and it is not quite 
clear why it was omitted, although, apparently, it was due to an over- 
sight. In any event it was not fo gotten. It was brought forward 
more than once in Parliament, but Vvilliam announced that he would 
not assent to any act makirg the juc ges independent of the Crown. 
As his reign drew toward its close, however, he signified that al- 
though he would veto a separate act he would accept the indepen- 
dence of the judiciary if provided for in the act of settlement which 
was to determine the succession to the throne of England. There- 
fore we find in the act of settlement the clause which declaies that 
the judges shall hold office during good behavior — "quamdiu se 
bene gesserint" — and shall be removable only on the request of 
both houses of Parliament. 

It is necessary to pause a moment here and consider briefly the 
provision of the act of settlement for the removal of judges on an 
address by the houses, because it has been most incorrectly used by 
persons ignorant probably of its history as a precedent justifying the 
recall. The clause was inserted not for the purpose of controlling 
the judges but to protect them still further against the power of the 
Crown by which they had hitherto been dominated. The history of the 
clause since its enactment demonstrates what its purpose was as well 
as the fulfillment of that purpose in practice. During the two cen- 
turies which have elapsed since William III gave his assent to the act 
there has been, so far as I can learn, only one removal on address, 
that of Sir Jonah Barrington, an Irish judge, in 1806, more than a 
hundred years ago. There have been several cases where removal 
was petitioned for, but Barrington' s was, I think, the only one in 
which the demand was successful. The procedure employed shows 
that there is no resemblance whatever between the removal of a judge 
upon the address of the lawmaking body and the popular recall. 
They are utterly different, instituted for different purposes, and the 
former furnishes in reality a strong argument against the latter. In 
all the cases of removal or attempted removal by address of Parlia- 
ment the accused judge was carefully tried before a special committee 



20 THE CONSTITUTION AND ITS MAKERS. 

of each house; he could be heard at the bar of either house, he could 
and did employ counsel, and could summon and cross-examine wit- 
nesses. This process is as far removed from the recall as the zenith 
from the nadir, for under the recall the accused judge has no oppor- 
tunity to summon or cross-examine witnesses, to appear by counsel, 
or to be properly heard and tried. He is obliged under the recall to 
make an appeal by the usual political methods and at the same time 
to withstand another candidate, while he is forced to seek a hearing 
from audiences ignorant of the law and inflamed perhaps against him 
by passion and prejudice. He has no chance whatever of a fair trial. 
Some of our States borrowed this provision of the act of settlement 
when they formed their constitutions. My own State of Massachu- 
setts was one of them. The power has been but rarely exercised by 
the legislature in the hundred and thirty years which have passed 
since our constitution was adopted, but it so happened that when I was 
in the legislature a case occurred, and I was a member of the committee 
on the judiciary to whom the petitions were referred. The accused 
judge was tried as elaborately and fairly^ as he could have been by any 
court or by the Senate if he had been impeached. He had counsel, 
he summoned and cross-examined witnesses, and the trial, for it was 
nothing less, occupied weeks. The committee reported in favor of 
removal, but the house rejected the committee's report. Some years 
later, after a similar trial, the address passed both houses and the 
judge was removed by the governor for misdemeanors and mal- 
feasance in office. A mere statement of the procedure shows at 
once that the removal by address is simply a summary form of 
impeachment with no relation or likeness to the recall. Removal by 
address is no more like the recall than impeachment is. If successful, 
they all result in the retirement of the judge accused, but there the 
resemblance, ends. The makers of the Constitution did not follow the 
act of settlement and adopt the removal on address. They no doubt 
perceived its advantages, because it made possible the removal of a 
judge incapacitated by insanity or age or disease without inflicting 
upon him the stigma of an impeachment, but they also saw that 
the removal by address might be used for political and personal 
reasons, of which one instance occurred in my own State, and they 

Erobably determined that the risk of its abuse outweighed any possi- 
le benefit which might flow from its judicious exercise. 
Thev placed their courts as far as they could on the great heights 
of justice, above the gusts of popular passion. They guarded them 
in every possible way. They knew that judges were human and there- 
fore fallible. They knew that the courts would move more slowly 
than popular opinion or than Congress, but they felt equally sure that 
they would in the end follow that public opinion which was at once 
settled and well considered. All this they did because all history and 
especially the history and tradition of their own race taught them that 
the strongest bulwark of individual freedom and of human rights was 
to be found ultimately in an independent court, the corner stone of all 
liberty. Their ancestors had saved the judges from the Crown. They 
would not retrace their steps and make them subject to the anger or 
the whim of anyone else. 

They wished men to be free, 
As much from mobs as kings, 
From you as me. 



THE CONSTITUTION AND ITS MAKEKS. 21 

The problem which they then solved has in no wise changed. The 
independence of the judiciary is as vital to free institutions now as 
then. The system which our forefathers adopted has worked admi- 
rably and has commanded the applause of their children and of foreign 
nations, who Bacon tells us are a present posterity. Now it is pro- 
posed to tear this all down and to replace the decisions of the court 
with the judgment of the market place. If I may borrow a phrase 
from the brilliant speech made recently by Mr. Littleton in the House, 
it is intended to substitute " government by tumult for government 
by law. 

Those who advocate this revolution in our system of government 
seem to think that a judge should be made responsive to the popular will, 
to the fleeting majority of one day which may be a minority the next. 
They would make their judges servile, and servile judges are a menace 
to freedom, no matter to whom their servitude is due. They talk of a 
judge's duty to his constituents. A judge on the bench has no con- 
stituents and represents no one. He is there to administer justice. 
He is there not to make laws, but to decide what the law is. He must 
know neither friend nor foe. He' is there to declare the law and to do 
justice between man and man. 

The advocates of the recall seem to believe that with subservient 
judges glancing timidly to right and left to learn what voters think, 
instead of looking steadfastly at the tables of the law, the poor will 
profit and the rich will suffer; that the individual will win and the 
corporation lose; that the powerful will be crushed and the weak will 
triumph, while the sword of the recall hangs over the head of the 
judicial Damocles. If even this were true, nothing could be more 
fatal. A judge must know neither rich nor poor, neither strong nor 
weak. He must know only law and justice. He must never listen 
to Bassanio's appeal, "To do a great right, do a little wrong." But 
the theory is in reality most lamentably false. No man fit to be a 
judge would, with few exceptions, take office under the recall. In 
the end the bench would be filled by the weak and the unscrupulous. 
The weak would make decisions to curry favor and hold votes. The 
unscrupulous would use their brief opportunity to assure their own 
fortunes, and that assurance could come only from the rich and the 
powerful, who would thus control the decisions. For the American 
court we should substitute the oriental cadi, with the bribe giver 
whispering in his ear. If a criminal happened to belong to some 
large and powerful organization in whose interest the crime was com- 
mitted he would have little to fear from a court where a judge subject 
to the recall presided. We should have courts like those ruled by the 
Camorra in the days of the Neapolitan Bourbons except that the 
subservience of the judge would be insured by fear of the recall 
instead of by dread of assassination. The result would be the same 
and certain criminals would become a privileged class and commit 
their crimes with impunity. 

In one of the noblest passages of his letter to the sheriffs of Bristol 
Edmund Burke says: 

The poorest being that crawls on earth contending to save itself from injustice and 
oppression is an object respectable in the eyes of God and man. 

Without the independent judge those words could never have been 
written, for before the independent judge alone could the poorest 



22 THE CONSTITUTION AND ITS MAKEKS. 

bring hope to contend against injustice. Judges, of course, are human 
and therefore err. I know well that there have been one or two great 
cases where the decision of the highest court traveling beyond its prov- 
ince has been reversed and swept away by the overwhelming force of 
public opinion and the irresistible current of events. I know only too 
well that we suffer from the abuse of technicalities, from delays which 
are often a denial of justice, and that the methods of our criminal law 
are in many States a disgrace to civilization. But all these delays 
and abuses and miscarriages of justice are within the reach of Congress 
and legislatures, and these evils can be remedied by statute whenever 
public opinion demands a reform. Their continued existence is our 
own fault. Yet when all is said the errors of the highest courts are 
few and the abuses and shortcomings to which I have referred can 
be cured by our own action. In the great mass of business, in the 
hundreds of trials which go on day by day and year by year, justice 
is done and the rights of all protected. We may declare with truth 
that in the courts as we have known them the poor, the weak, the 
helpless have found protection and sometimes their only defense. 
A mob might thunder at the gates, money might exert its utmost 
power, but there in the courtroom the judge could see only the law 
and justice. The safeguard of the rights and liberties of minorities 
and individuals, of the weak and above all of the unpopular, as a 
rule, has been found only in the court. And now it is proposed to 
undo all this and to make the judges immediately dependent on the 
will of those upon whom they must pass judgment. If the framers 
of the Constitution were alive to-day, they would not find a single new 
condition to affect their faith in an independent judiciary. They 
would decide now, as they decided then. Are we ready to reverse 
their judgment and open the door to the flood of evils which will 
rush into the State as they always have rushed in when in times past 
the courts were controlled by an outside power ? 

The destruction of an independent judiciary carries with it every- 
thing else, but it only illustrates sharply the general theory pursued 
by the makers of the Constitution. They established a democracy, 
and they believed that a democracy would be successful; but they 
also believed that it could succeed solely through forms and methods 
which would not make it impossible for the people to carry on their 
own government. For this reason it was that they provided against 
hasty action, guarded against passion and excitement, gave ample 
room for the cooler second thought, and arranged that the popular 
will should be expressed through representative and deliberative 
assemblies and the laws administered and interpreted through inde- 
pendent courts. Those who would destroy their work talk contin- 
ually about trusting the people and obeying the people's will. But 
this is not what they seek. The statement as they make it is utterly 
misleading. That for which they really strive is to make the courts 
and the Congress suddenly and rapidly responsive to the will of a 
majority of the voters. It matters not that it may be a narrow, an 
ephemeral, or a fluctuating majority. To that temporary majority, 
which the next year may be changed to a minority, the Congress and 
the courts must at once respond. Legislation of the most radical, 
the most revolutionary character may thus be forced upon the 
country, not only without popular assent but against the will of the 
great mass of the people. 



THE CONSTITUTION AND ITS MAKERS. 23 

The framers of the Constitution made it in the name and for the 
benefit of the people of the United States; for the entire people, not 
for any fraction or class of the people. They did not make the Con- 
stitution for the voters of the United States. They recognized that 
the popular will could only be expressed by those who voted and that 
the expression of the majority must in the end be final. But they 
restrained and made deliberate the action of the voters by the limita- 
tions placed upon the legislative, the executive, and the judicial 
branches, so that the rights of all the people might be guarded and 
protected against ill-considered action on the part of those who vote. 
Those who now seek to alter the fundamental principles of the Consti- 
tution start with a confusion of terms and a false proposition. They 
talk glibly of " the people." But they mean the voters, and the voters 
are not the people, but a small portion of the people, not more than a 
fifth or a sixth part, who are endowed by law with the power to 
express what is to be regarded as the popular will. The legal voters are 
the representatives and trustees of all the inhabitants of the country, 
of all those under twenty-one to whom the future belongs, of all the 
women, of all resident aliens, and of all persons not qualified to vote. 
They are the instrument, the only practicable instrument, for reach- 
ing an expression of the popular will ; but they are not the people as a 
whole, for whom and for whose protection the Constitution was made. 
It was for the protection of the people that the makers of the Consti- 
tution made provisions to assure deliberate movement and to pre- 
vent hasty, passionate, or ill-considered action. The purpose of those 
who would destroy the present Constitution is to remove these safe- 
guards and for the " people" of the Constitution substitute, without 
check, hindrance, or delay, the will of the voters of the moment. 
They are blind to the awful peril of turning human nature loose to 
riot among first principles. 

But they do not stop even there. Under the system they propose 
a small minority of the voters, who are themselves a minority of the 
people, are to have unlimited power to compel the passage of laws. 
A small minority will be able and, as the experience of the voluntary 
referendum shows, will in almost every instance contrive to plaoe 
laws upon the statute book which the mass of the people really do 
not desire. A small minority can force the recall of a judge and 
drive him from the bench. The new system places the actual power 
in the hands of minorities, generally small, always interested and 
determined. Instead of government "by the people and for the 

f)eople" we shall have government by factions, with all the turbu- 
ence, disorder, and uncertainty that the rule of factions ever implies. 
Such a system is a travesty of popular government and the antipodes 
of true democracy. Under the same conditions of human nature, 
with no element of decision lacking then that we have now, the 
framers of the Constitution established the system under which we 
have flourished and rejected that which it is now proposed to set up 
and which all experience had shown to be a failure. Their system 
embodied in the Constitution has proved its efficacy. It has worked 
well and it has been an extraordinary success. The other, burdened 
with the failures of centuries, has always trodden the same path which 
revolves in the well-worn vicious circle from democracy to anarchy, 
from anarchy to despotism, and then by slow and painful steps back 
to the high levels of an intelligent freedom and an ordered liberty. 



24 THE CONSTITUTION AND ITS MAKERS. 

Our ancestors sought to make it as impossible as human ingenuity- 
could devise to drag democracy down by the pretense of giving it a 
larger scope. We are asked to retrace our steps, adopt what they 
rejected, take up that which has failed, cast down that which has 
triumphed, and for government by the people substitute the rule of 
factions led by the eternal and unwearied champions who in the name 
of the people seek the promotion which they lack. 

Such are the questions which confront us to-day, amazing in 
their existence under a Constitution with such a history as ours. 
The evils which it is sought to remedy are all, so far as they actually 
exist, curable by law. No doubt evils exist; no doubt advance, 
reform, progress, improvements are always needed as conditions 
change, but they can all be attained by law. There is no need to 
destroy the Constitution, to wreck the fundamental principles of 
democracy and of the Bill of Rights embodied in the first ten amend- 
ments, in order to attain to an amelioration of conditions and to a 
wider and more beneficent social state when statutes can effect all 
and more than is demanded. It is not necessary to scuttle a noble 
ship in order to rid her of rats; it is not imperative to burn the 
strong, well-timbered house which has sheltered successive genera- 
tions because there is a leak in the roof; it is only a madman who 
would hurl down in blackened ruin a noble palace, the work and 
care of centuries, because a stain easily erased may now and then 
be detected upon the shining whiteness of its marble walls. 

AH these questions, all these reforms and revolutions so glori- 
ously portrayed to us, it can not be said too often, are very old. 
Their weakness is not that they are new but that they are time worn 
and outworn. The voices which are now crying so shrilly that we 
must destroy our Constitution and abandon all our principles of 
government have been heard — 

In ancient days by Emperor and clown. 

They are as old as human discontent and human impatience and 
are as ancient as the flattery which has followed sovereign authority 
from the days of the Pharaohs to our own. 

There is a familiar story, which we all heard as children, of the 
courtiers of Knut, King of England, a mighty warrior and a wise man, 
not destitute evidently of humor. These courtiers told the King that 
the tide would not dare to come in against his command and wet his 
feet. So he bade them place his chair near the edge of the sea and the 
main came silent, flooding in about him, and you all remember the 
lesson which the King read to his flatterers. Many kings have come 
and gone since then, and those who still remain, now for the most 
part walk in fetters. But the courtier is eternal and unchanged. 
He fawned on Pharaoh and Csesar and from their day to our own has 
always been the worst enemy of those he flattered. He and his 
fellows contended bitterly in France for the privilege of holding the 
King's shirt, and when the storm broke which they had done so much 
to conjure up, with few exceptions they turned like cravens and fled. 
New courtiers took the vacant places. They called themselves 
friends of the people, but their character was unaltered. They 
flattered the mob of the Paris streets, shrieking in the galleries of the 
convention, with a baseness and a falsehood surpassing even those of 
their predecessors who had cringed around the throne. Where there 



THE CONSTITUTION AND ITS MAKERS. 25 

is a sovereign there will be courtiers, and too often the sovereign has 
listened to the courtiers and turned his back on the loyal friends who 
were ready to die for him but would not lie to him. Too often has the 
sovereign forgotten that, in the words of one of the most penetrating 
and most brilliant of modern English essayists, " a gloomy truth is a 
better companion through life than a cheerful falsehood." Across 
the centuries come those dangerous and insidious voices and they 
sound as loudly now and are as false now as ever. They are always at 
hand to tell the sovereign that at his feet the tide will cease to ebb 
and flow, that the laws of nature and economic laws alike will at his 
bidding turn gently and do his will. And the tides move on and the 
waves rise and the sovereign who has listened to the false and selfish 
voices is submerged in the waste of waters, while the courtiers have 
rushed back to safety and from the heights above are already shouting, 
"The king is dead! Long live the king!" 

I have a deep reverence for the great men who fought the Revolu- 
tion and made the Constitution but I repeat that I as little think that 
all wisdom died with them as I do that all wisdom was born yester- 
day. When they dealt with elemental questions and fundamental 
principles, the same yesterday, to-day, and forever in human his- 
tory, I follow them because they have proved their wisdom by their 
success. I am not ready to say with Donne — 

We are scarce our father's shadow cast at noon — 

but I am more than ready ; I profoundly believe that we should cherish 
in our heart of hearts the noble and familiar words of the wise son 
of Sirach: 

Let us now praise famous men and our fathers that begat us. The Lord hath wrought 
great glory by them through his great power from the beginning. Leaders of the peo- 
ple by their counsels and by their knowledge of learning meet for the people; wise 
and eloquent in their instructions; all these were honored in their generations and 
were the glory of their times. 

There be of them, that have left a name behind them, that their praises might be 
reported. And some there be which have no memorial; who are perished as though 
they had never been; and are become as though they had never been born; and their 
children after them. But these were merciful men whose righteousness hath not 
been forgotten. With their seed shall continually remain a good inheritance and their 
children are within the covenant. 

Their seed standeth fast and their children for their sakes. Their seed shall remain 
forever and their glory shall not be blotted out. Their bodies are buried in peace; 
but their name liveth forevermore. The people will tell of their wisdom and the 
congregation will show forth their praise. 

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